Opinion
DOCKET NO. A-0478-11T4
04-18-2013
CYNTHIA LIZZIE, HAMDY SLIMAN, MARTIN GREENBLATT, Plaintiffs-Appellants, v. FLETCHER CREAMER, JR., FLETCHER CREAMER, INC., MARK DOMINGUEZ, PAPANDREA, MICHAEL WOLAN, CITY OF PLAINFIELD, NEW JERSEY AMERICAN WATER, Defendants-Respondents.
Cynthia Lizzie, Hamdy Sliman and Martin Greenblatt, appellants pro se. Malapero, Prisco, Klauber & Licata, LLP, attorneys for respondents (Rebecca Molnar, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-456-10.
Cynthia Lizzie, Hamdy Sliman and Martin Greenblatt, appellants pro se.
Malapero, Prisco, Klauber & Licata, LLP, attorneys for respondents (Rebecca Molnar, on the brief). PER CURIAM
Plaintiffs appeal from an order of the Law Division entered on the day of trial dismissing their complaint with prejudice. For reasons set forth hereinafter, we are constrained to reverse and remand the matter to the trial court for further proceedings.
I.
Pro se plaintiffs Cynthia Lizzie and Hamdy Sliman filed a complaint in the Law Division against Fletcher Creamer Jr., Fletcher Creamer, Inc., the City of Plainfield, North American Water Co., and three individuals. Plaintiffs alleged they were in the business of selling floor coverings and area rugs in Plainfield and used the basement of a mosque on North Avenue in Plainfield to "store their valuable area rugs." They claimed that on October 4, 2008, a "temporary water pipe" running along the curb in front of the mosque on North Avenue "burst either due to improper installation or the failure to properly check it," causing water to flood the basement of the mosque and damage their merchandise.
Plaintiffs asserted claims against defendants for negligence, "consequential damages[,]" failure to exercise "due diligence" and to "properly dispatch . . . persons to correct the water pipes[,]" and "bad faith" because they "willfully and maliciously" failed to compensate plaintiffs for their losses.Defendants answered the complaint, denied its allegations and raised various affirmative defenses. The parties engaged in discovery thereafter, and plaintiffs provided an expert "engineering report" by an engineer named Goldblatt. We have not been provided with a copy of the report, however. It appears that defendants also provided an engineering expert report and, like plaintiffs, were prepared to call their expert to testify at trial.
Pursuant to a court order, Martin Greenblatt was later added as a party plaintiff.
Summary judgment was entered on May 13, 2011, dismissing plaintiffs' claims against the individual defendants. That order is not the subject of this appeal.
The case was listed for trial on August 8, 2011. On August 6, 2011, defendants prepared an "in limine motion" seeking to preclude plaintiffs "from testifying regarding lost profits or business." The brief in support of the motion stated that plaintiffs provided no factual support or expert reports pertaining to damages for alleged lost business or profits. The record suggests that defendants also filed a written in limine motion seeking to preclude plaintiffs' liability expert from testifying at trial on the basis that his report was a net opinion. Again, however, neither party to this appeal has provided a copy of that motion but we infer it was provided to plaintiffs on the day of trial.
On August 9, 2011, the parties reported to the trial judge, who then proceeded to go over jury selection procedures, witness lists and schedules, and proposed voir dire questions. During this process, defendants' counsel asked the court to strike the complaint as against the City of Plainfield because plaintiffs "never filed a notice of claim." Counsel stated he had not filed a written motion for this relief because he did not wish to burden the court with "more written submissions." Plaintiffs assured the court they had, in fact, filed a "notice of claim" on a timely basis. However, when plaintiffs were unable to locate the notice among the papers they had assembled for trial, the trial judge "dismiss[ed] the action against the City of Plainfield." Apparently, no written order was entered.
The trial judge also dismissed plaintiffs' claim for "bad faith" on the basis of a verbal motion made by defendants' counsel on the morning of trial. The judge determined that "There's no theory that . . . because they dragged it out, that caused additional damages."
Prior to jury selection, the trial court invited defendants' counsel to address defendants' "motions in limine" to exclude testimony at trial from plaintiffs' liability expert because his report constituted a net opinion and to preclude plaintiffs from testifying or presenting evidence regarding lost profits or business.
Addressing the liability expert first, defendants' counsel argued that plaintiffs' expert report constituted a net opinion. Counsel earlier represented that defendant Fletcher Creamer had been hired by New Jersey American Water to repair a buried water main in Plainfield, and while undertaking that work, it had installed a temporary water "bypass line . . . along the curb, in front of the premises . . . " in order to provide water to the premises while the main was repaired. Counsel further stated that the bypass line was then "broken by a third party."
Because we have neither defendants' in limine motion, nor the report itself, it is pointless to repeat at length defendants' arguments or the trial court's reasons for finding the report to be a net opinion and to forego ordering a hearing on the issue under N.J.R.E. 104. We simply note that the trial court did provide a rationale for finding the expert's report to be a "net opinion and, therefore, inadmissible as a bare conclusion unsupported by factual evidence in the case."
Defendants maintain on appeal that the trial court "properly excluded plaintiffs' expert report pursuant to N.J.R.E. 703 on the ground that it is a net opinion and properly declined to conduct a N.J.R.E. 1[04] hearing" on the issue. As noted earlier, neither party has provided a copy of the motion in limine or the plaintiffs' expert report. Consequently, we have no complete record before us, which would enable us to undertake appellate review of these arguments.
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After the trial court announced its conclusion, defendants' counsel stated he "would make an application to dismiss the case. The case cannot go forward without expert testimony." The trial court thereafter concluded "for all the reasons that I outlined as problems in the expert report, I'm constrained to dismiss the case . . . ." The court then entered a written order on August 9, 2011, dismissing the case "with prejudice." This appeal followed.
II.
Frankly, plaintiffs' pro se brief on appeal is difficult to follow, and asserts that the order of dismissal violated their "substantive due process" rights and their "right to petition the government" under the Fourteenth Amendment to the United States Constitution. However, plaintiffs also argue that the trial court improperly granted "summary judgment" and "abused its discretion" by its failure to conduct a hearing under N.J.R.E. 104 before ruling on defendants' motion to exclude their expert.
We review a decision regarding the admission of expert testimony under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[I]n making relevance and admissibility determinations," the trial judge's exercise of his "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008). However, we accord no such discretion to a ruling that is "inconsistent with applicable law." Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2013).
The fact that neither party has provided us with the in limine motion or the expert report at issue makes it impossible for us to properly discharge our appellate function. While such failure would ordinarily require us simply to affirm the rulings in question, Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002), we choose to reverse and remand because we perceive other problems in the record that cause concern about the fairness of the procedure followed here.
We recognize the inherent unfairness of bringing a motion to strike a necessary expert's testimony one day before trial. Initially, that procedure violates Rule 4:25-7(b), which, too often, is honored in the breach. That rule, among other things, requires the parties to meet and exchange seven days prior to the trial date, the pretrial information prescribed by Appendix XXIII, which includes "[a]ny in limine or trial motions . . . ." Considering a motion in limine prepared on the weekend prior to trial implicitly condones this violation of the rules.
Moreover, presenting such motions on the day of trial does a disservice to the judge and opposing parties. The rule permits opposition to the motion in limine to be filed no later than two days before trial. See Pressler & Verniero, supra, Appendix XXIII to R. 4:25-7 at 2652. Plaintiffs were not accorded that opportunity here. The trial judge also should have the opportunity to consider the motion in limine and any opposition in a manner that promotes comprehensive consideration of the issue and its potential implications for the trial.
We next turn to the substance of defendants' motion to exclude plaintiffs' expert from testifying on the ground that his report is an impermissible "net opinion." Our remarks should not be taken as a criticism of the trial judge's substantive conclusions in any respect. As noted, neither party provided a copy of the expert's report, or defendants' written motion and supporting documents.
N.J.R.E. 703 requires that an expert's opinion be based on facts, data or other opinions, either perceived by, or made known to, the expert, at or before trial. Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981); Nguyen v. Tama, 298 N.J. Super. 41, 48-49 (App. Div. 1997). Under the "net opinion" rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). The court requires an expert "to give the why and wherefore" of his or her opinion, rather than a mere conclusion. Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Often, where the expert report references the facts and standards on which it is based, but fails to explicitly connect such facts and standards to the expert's ultimate opinion, a trial court properly convenes a hearing under N.J.R.E. 104 to explore whether the expert can make that connection. Cf. State v. Chen, 208 N.J. 307, 319 (2011).
In the case before us, plaintiffs' expert report was apparently over ten pages in length and contained conclusions respecting the maintenance of the temporary bypass line, its proximity to a utility trench, and the passage of water from the broken line into the basement of the mosque where plaintiffs' rugs were stored. The report appears further to have cited to various standards governing that type of work. Defendants' counsel argued against a hearing pursuant to N.J.R.E. 104 and stated it would simply permit the expert "to now supplement and fill in the necessary blanks" in his report. In essence, defendants argue they would be surprised by such new "discovery."
In a related context, the Supreme Court has "strongly urge[d]" trial judges not to bar otherwise admissible expert testimony because of discovery violations where the proponent can show "(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000) (quoting Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)). Accord Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-32 (App. Div. 1997); Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Especially "when the testimony in question is 'pivotal' to the case of the party offering the testimony, a court should seek to avoid exclusion where possible." Wymbs, supra, 163 N.J. at 544 (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 582 (App. Div.), certif. denied, 142 N.J. 574 (1995)).
Here, before barring the testimony of plaintiff's expert because such testimony may amount to a discovery violation and consequently dismissing plaintiffs' case, the trial court should have explored the adequacy of "granting a continuance . . . with or without an award of fees to the surprised party." Id. at 543 (citing Ratner, supra, 241 N.J. Super. at 203). The proposed new testimony by plaintiffs' expert should have been excluded only "if such an outcome is just and reasonable." Ibid. (citing Thomas, supra, 282 N.J. Super. at 581). This alternative, however, was not even explored by the trial court.
Further where, as here, defendants raised an unexpected motion for summary judgment on the morning of trial based on the inadequacy of plaintiff's expert report, and the judge was inclined to grant the motion, the court at the very least should have ordered a N.J.R.E. 104 hearing. The purpose of the hearing would be to determine whether the expert was able to provide the purportedly missing element in his opinion, whether he in fact would testify about that missing element, and, if so, whether an alternative sanction short of barring the testimony would satisfy the interests of justice.
Plaintiffs certainly had no design to mislead the defense in providing discovery. The absence of some requisite element in the expert opinion, first asserted by the defense on the eve of trial, cannot be deemed purposeful conduct on the part of plaintiffs.
Putting aside these procedural issues, we have repeatedly cautioned trial courts against consideration of such motions in limine. See Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988) (noting that "in limine rulings on evidence questions . . . should be granted only sparingly and with the same caution as requests for dismissals on opening statements"); Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 46-47 (App. Div. 1990) (noting that a hearing on motion in limine required judge to make factual determinations more properly left to the jury), mod. on other grounds, 125 N.J. 421 (1991); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104 (2013). Heightened caution is appropriate when the motion in limine is made on the day of trial and has the potential to summarily dispose of the case, as happened here.
Further, to bar the expert and then dismiss the entire action is an extreme sanction. In Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76 (App. Div. 2001), we reversed the trial court's involuntary dismissal of plaintiff's complaint. Id. at 93. There, the trial judge adopted a procedure requiring plaintiff's counsel to proffer "his best case" to the judge before the trial started. Id. at 81. The judge thereafter ruled he would "hear argument and make a determination as to whether or not . . . there [was] something which should go to the jury." Id. at 81-82.
We concluded that this procedure unfairly denied plaintiff notice and an opportunity to be heard. Id. at 84. We contrasted the trial judge's impromptu procedure at trial with the appropriate pre-trial motion procedure contemplated by Rule 4:46, and noted, "[t]he purpose of [the summary judgment] rules is obvious, that is, to afford the party against whom relief is sought notice of the application, together with a meaningful opportunity to respond." Ibid.
We conclude similarly that in these circumstances, the trial judge mistakenly adopted a procedure that denied plaintiffs the full and fair opportunity to present their case. Therefore, we reverse and remand the matter for further proceedings.
In doing so, we do not imply in any way that plaintiffs can necessarily prevail. Rather, we simply determine that the procedures employed by defendants not only violated court rule, but unfairly deprived plaintiffs of the opportunity to more thoughtfully respond to their motions in limine. Also, we determine that the court should have explored alternatives other than the drastic sanction of dismissal of plaintiffs' complaint with prejudice.
Accordingly, we reverse both the dismissal of plaintiffs' complaint and the exclusion of testimony from their liability expert. We remand the matter to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION